University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues

Tag Archives: South Africa

On April 1, 2017, the armed forces of Syrian President Bashar al-Assad launched a chemical weapon attack on a Syrian hospital.[1] Unfortunately, this attack is not the first instance of chemical warfare in the Syrian Civil War.[2]

Raging for the past six years, the Syrian Civil War has claimed the lives of hundreds of thousands of men, women, and children.[3] In 2012, then-President Barack Obama drew the non-infamous “redline”, claiming it would “change my calculus” if chemical weapons were used in the Syrian War. [4] While the Obama Administration appeared to be heading towards another intervention in the Middle East, the administration soon reversed itself, placing its hopes on a deal reached with the Russian Federation. In this 11th hour deal, the Russians were to oversee the destruction of President Assad’s chemical weapons.[5]

While the United States may well have avoided another Middle Eastern quagmire and may well have ceded prestige and influence to the Russians, the world largely watched the horror unfold as thousands of Syrian citizens were rendered helpless by chemical nerve agents. The world was horrified at the effects of the nerve agents, and yet the world continued with business as usual.

Just as then-President Obama was torn between military intervention in the Syrian Civil War and non-intervention, President Trump is torn between intervening in a years-long war and remaining on the sidelines. Even though candidate Trump campaigned on an “American First” platform, consistently claiming he was against the Second Iraq War from the beginning, the President must understand that America must stand for the non-use of chemical or biologic weapons against citizens, or even on the battlefield.

America, from its founding, has stood for the universal rights of freedom and self-determination, enshrined in our Declaration of Independence from George III, chief among them, life, liberty, and the pursuit of happiness. While, like all nations, the history of the United States is tainted with horrific episodes, the United States stands for human rights. In the history of the world, the United States is one of the only, if not the only, nation that fought a brutal civil war to set other men free from bondage.

Furthermore, the United States, and its allies, fought two World Wars under the principles of self-determination and freedom from tyranny, persecution, and genocide. From the ashes of the Second World War rose the United Nations. That institution too, seems incapable of stopping Assad’s gas attacks.

Protected by the Chinese and Russian veto, the Syrian government will probably never pay for its gross violation of international law and the laws of war. This then begs the question: if the United Nations is no longer an institution capable of protecting the innocent, then what is its purpose in its current form? What would make this institution capable of truly bringing violators to justice and face the consequences of their actions?

There has been some discussion on reforming the United Nations Security Council. In what form would such an arrangement take? Would there be any permanent members removed from their permanent positions? Who would take their place? In the event present permanent members are not removed, what members would receive permanent membership? Finally, how would that affect the veto powers?

Some have offered the addition of the “BRIC(S)” as permanent members to the Security Council, minus the already-permanent members of Russia and China. As the leading emerging economies Brazil, India, and South Africa would receive permanent status as well as a veto.

As the largest country in South America, Brazil would add diversity to the Council, as it would be the only permanent member from South America. As another emerging economy with a large population, and a democracy, India would be a leading candidate to receive permanent status. However, given various geopolitical concerns, China would likely vocally oppose any such appointment to the Security Council’s permanent members. Pakistan, India’s longtime rival, would oppose such an appointment as well. Given the absence of an African voice on a permanent basis, South Africa would probably receive the veto and permanent status.But the question would then turn to the following: given the dilution of the veto, what would be its power?

Would the United Nations determine that since there would be as many as eight members, would any veto require just one permanent member to halt a resolution, or would two members be necessary? Could this body become more democratic, with “majority rule” be the rule? If that is the case, how would the decidedly non-democratic states of Russia and China respond? They could, one could plausibly foresee, cut back on their involvement in the Security Council, deciding that they no longer have as much of a stake in the body.

While the United Nations has been unable to protect the innocent in conflicts like Rwanda, the Sudan, Syria, or Eastern Ukraine, the UN must reevaluate its work. The United Nations appears paralyzed and incapable of living up to providing for peace and prosperity for all nations. Perhaps a remedy for this apparent paralysis could include more permanent members of the Security Council while revising the current rules regarding the veto powers of the permanent members.

While the United Nations expressed outrage as from this most recent chemical weapons attack against an innocent civilian population, the UN has not taken any concrete actions against Bashar al-Assad. While President Trump campaigned on an “America First” platform, the president’s most recent actions[6] are polar opposites of such a course. United Nations Ambassador Nikki Haley stated that, regime change in Syria is “inevitable.”[7]

It appears that President Trump is evolving in his new role as commander in chief and as leader of the free world. From campaigning on an “America First” platform to his strikes against Syria, and the dispatching of the USS Carl Vinson strike group to the Korean Peninsula, President Trump has shown he is willing to use military force to further the interests of the United States in the absence of United Nations action.[8]

Bradley Willis is a 3L at the University of Baltimore School of Law. He graduated from the University of Delaware (2014) with a Bachelor of Arts in Political Science and minors in History and French and studied abroad in Caen, France. His areas of interest are international relations, history, politics, and the laws of war. Bradley spent a semester externing with the Hermina Law Group, researching and writing sovereign immunity issues as well as embassy law. Last year, he participated in the Philip C. Jessup Moot Court Competition. He is currently a law clerk for the Law Office of David B. Love, P.A.

“It would turn back the clock on the progress made globally in relation to LGBTI rights.” The Director for ARC International lamented in response to the opposition for denouncing the UN Human Rights Council’s resolution to monitor and investigate LGBTI rights violations more closely[1]. Although the resolution is not binding, by merely calling upon and encouraging State cooperation[2], the protections it offers cover basic human rights and treatment.

On June 30, 2016 the UN Human Rights Council (UNHRC) adopted the resolution, establishing an independent expert for the protection against violence and discrimination based on sexual orientation and gender identity[3]. The UNHRC recommended the position of an independent expert after reports of widespread violence and deaths in the LGBTI community[4]. It mandates the expert with the responsibilities to assess implementation of international instruments, to raise awareness of discrimination, to work in cooperation with States, to address forms of violence, and to conduct advisory services[5]. Vitit Muntarbhorn was appointed as the independent expert on September 30, 2016[6]. However, the resolution is currently receiving strong opposition with a call for cancellation from a coalition of African states. .

Through a separate resolution to the General Assembly, the African bloc is seeking to suspend and subsequently repeal the independent expert position and the UNHRC’s resolution altogether[7]. Sierra Leone initiated a resolution on behalf of the Group of African States to “defer consideration” of the position[8], to delay monitoring and to suspend activities pursuant to a determination of the legality of the HRC’s resolution[9].

The African States are claiming that the UNHRC’s resolution violates international law. They claim that it delves into matters reserved for domestic jurisdiction, that it gives priority to sexual orientation discrimination while it ignores other types of African discrimination and development[10], and that it lacks universal support[11]. Further, the African Group claims that sexual orientation and gender identity should not be linked to international human rights instruments[12]. Amongst the countries of the African opposition is South Africa, which had also abstained from voting in the UNHRC’s resolution[13].

The opposition’s reaction is not a surprise. However, South Africa’s stance is surprising as it has contributed to and upheld the development of progressive jurisprudence[14]. It is also surprising due to the country’s discrimination struggles, Constitutional guarantees to universal rights, and recent actions regarding protection of LGBTI rights[15]. South Africa abstained from voting during the UNHRC’s resolution because of alleged “unnecessary divisiness”[16]. It currently appears to agree with the African States’ stance that the UNHRC resolution jeopardizes “the entire international human rights framework as [it] create[s] divisions” and that it does not fit within international law[17].

Even recently, the South African Department of Justice has worked to protect LGBTI rights and the Department of Home Affairs was in the center of controversy by refusing entry to a pastor who had made homophobic hate speeches[18]. So, why did South Africa choose to side with the rest of Africa? Initially abstaining from the vote, but then agreeing with the rest of Africa may be the result of strategic appeasement. South African officials have been criticized for aligning with “Western” beliefs and for persuading the rest of Africa in aligning its politics pursuant to such beliefs[19]. Further, South Africa still owes a large debt to certain African countries for aid during the apartheid and trade to the rest of Africa accounts for $20 Billion of Africa’s trade[20].

The claims that sexual orientation and gender identity should not be included in international law mechanisms are unjustified. Orientation and identity are not outside of international law as they are protected in the principles of universality and non-discrimination established in the Universal Declaration of Human Rights and the International Covenant on Civil Political Rights[21][22][23]. Also, the claim that UNHRC’s agenda on sexual orientation and gender identity overlooks issues relating to racism is frivolous. The UNHRC resolution’s purpose is to support a broad agenda, to strengthen mechanisms, and to address issues of racism, discrimination, and related intolerance in any form[24]. Further, claims that the UNHRC resolution violates sovereignty and non-intervention purport a misunderstood role of the appointed expert. The expert is not a decision-making or enforcement body, but instead its purpose is to address issues, raise awareness, engage in dialogue, and to work in cooperation with States for any recommended implementations[25]. Lastly, the unprecedented suspension of the UNHRC resolution would hinder the Council’s institutional architecture and autonomy[26], which would render it “toothless” to future oppositions[27].

If the African bloc’s resolution is put forward for a vote to the General Assembly, South Africa will likely abstain in order to appease Western Countries and to be in accordance with its constitutional guarantees. The backlash from voting against the UNHRC resolution would be too damaging to the State’s reputation and politics as the champion of anti-discrimination following the end of apartheid. It would receive criticism from governments and NGOs alike. South Africa’s stance is most likely a “bluff” in order to appease other African countries until the issue has lost its “steam.”

US officials strongly support the UNHRC resolution and warn that re-opening the resolution to opposition could undermine the council’s ability to function and enforce their mandates. They noted that such review will weaken the Council, as it has never been subject to intervention by the UN General Assembly[28]. Further, a representative from the EU reminded that the States must “protect the human rights of all individuals without distinction of any kind.”[29] The representative emphasized that they have an international obligation to uphold the UNHRC resolution and the opposition lacks legal foundation to oppose it.[30] Amidst Western warnings, the African bloc’s resolution has a good chance of obtaining the necessary 97-vote simple majority to pass,[31] with the support of the African States and almost every State in the Organization of Islamic Cooperation.[32]

The vote on the African States’ resolution in the General Assembly was scheduled for Tuesday, November 8, 2016. However, the UN has delayed talks and voting on canceling the independent expert and amending the UNHRC resolution until later this month, November 2016.[33]

John Rizos is a 3L at the University of Baltimore School of Law with a concentration in International Law. He has an interest in human rights and international criminal law. In addition to being a CICL Fellow, John has served as the Secretary for Phi Alpha Delta Law Fraternity and is currently enrolled in HarvardX’s online course, “Humanitarian Response to Conflict and Disaster.” In June 2016, John was a member of the CICL Fellows team that, under the supervision of Professor Moore, assisted in drafting an amicus brief to the Extraordinary Chambers in the Courts of Cambodia, which was later approved and published. John graduated with honors from Towson University with a BA in International Studies (2013). He has interned at the Press Office of the Greek Embassy in Washington, D.C. and the International Civil Advocacy Network (ICAN), a non-profit organization advocating for women’s rights in the Middle East.

At a recent gathering, Zulu King Goodwill Swelithini described immigrants “as lice that must be removed”[1] and urged foreigners to “pack their bags and go” because they are taking jobs away from natural-born South African citizens.[2] Although kings are mostly ceremonial figures in South Africa, they are influential in their communities. In this instance, Zulu King Goodwill’s statements sparked violent xenophobic acts against immigrants in Durban, a port city in South Africa.[3] The violence has since spread to other major cities in South Africa, most notably the commercial city of Johannesburg. Nearby African nations have also condemned these recent xenophobic attacks and as a precaution have evacuated their citizens from South Africa.[4] This blog post seeks to provide an overview of the recent xenophobic attacks and develop an understanding of why these xenophobic attacks keep happening in South Africa.

At present, South Africa has about two million documented and undocumented immigrants.[5] Many come to South Africa, also known as the “rainbow nation,” for a better life and hope to contribute to the nation’s economy by bringing skills that are in demand. Unfortunately, South Africans perceive these immigrants as criminals; even President Jacob Zuma’s eldest son, Edward, said of foreigners that, “we are sitting on a ticking time-bomb of them taking over the country.”[6] President Zuma responded with an emotionless plea by stating, “it is misleading and wrong to label or regard all foreign nationals as being involved in crime in the country.”[7]

The recent violent xenophobic attacks, mainly arising in poor and marginalized areas, have killed at least seven people and have left roughly 5,000 people homeless.[8] This is not the first time South Africa has dealt with xenophobic attacks and many activists say progress, however incremental, is being made. This time a round, South Africa deployed its army to hostile areas to prevent further attacks against foreigners[9] and police were commended for their vigorous response to the violence.[10] Additionally, in Johannesburg a hotline for victims to report xenophobic attacks was launched to help members of vulnerable communities come forward and report problems to the police.[11] To increase international awareness of these human rights violations, some South Africans have taken to social media, with the hash-tag “WeAreAfrica,” and have held protests against xenophobia and violence in the streets of South Africa.[12]

A notable difference between the recent xenophobic attacks in comparison to those that occurred in previous years is the increase of commitment to prosecute perpetrators.[13] It is absolutely imperative that perpetrators be prosecuted for their actions to deter others from committing the human right violations associated with xenophobic attacks – including but not limited to looting foreign owned businesses, rape, murder, robbery, and theft.[14] Criminal accountability is just one necessary tactic to mitigate xenophobic attacks in South Africa. For example, Peace Action, a non-governmental organization was created to monitor and raise awareness on this issue within local communities and law enforcement.[15] Peace Action places workers where foreigners are most vulnerable, including the country’s refugee centers, where poor migrants are often denied services and bullied for bribes as well as hospitals, which recently began illegally demanding cash payments in advance from foreign patients.[16]

Despite the improvement in the accountability process for those who commit xenophobic attacks or an increase in resources for those affected by xenophobic attacks, the fundamental question revolving around these attacks remains – why do they keep happening? The answer is straightforward – inequality. Today, South Africa remains one of the “most unequal societies on the planet.”[17] On April 27, 1994 South Africa held its first post apartheid elections; and for many South Africans, the proximity of the recent attacks to this historic anniversary is a harsh reminder of the failures of the ruling African National Congress (ANC) to carry out Nelson Mandela’s promise of a “better life for all.”[18] Vast unemployment, lack of affordable housing, inability to deliver basic services, like water and electricity, and a growing gap between rich and poor have left most South Africans without a safety net.[19] The government must step in and address inequality to alleviate South African’s from these inhumane xenophobic attacks. Perhaps the reason why these attacks keep occurring is because it is harder to hold elected officials accountable than to place the blame on foreigners. Foreigners are an easy scapegoat but they should not suffer for the government’s lack of success in diverting inequality and establishing a prosperous economy. If anything, locals and immigrants should work hand in hand to continue the hope that the nickname “rainbow nation” connotes. “Xenophobia starts in people’s minds…and it grows with a lack of education and a lack of understanding,” stated Trish Erasmus, Director of the Refugee-and-Migrants Program at the nonprofit Lawyers for Human Rights.[20] Effective criminal prosecution and practical grassroots efforts are essential to foster a greater dialogue between immigrants and South Africans to change the perception of foreigners. The government must take responsibility and squash the xenophobic attitude throughout the entire country by addressing the bigger issue: inequality.

Suzanne De Deyne is a second year student at the University of Baltimore School of Law (candidate for J.D., May 2016) concentrating in International Law. Suzanne graduated cum laude from the University of Massachusetts-Amherst with a Bachelor of Arts in Political Science and a minor in Economics. She also received a Honor’s International Relations Certificate from Mount Holyoke College.

Currently, Suzanne is a staff editor on the Journal of International Law and represents the International Law Society as the Alumni Relations Director. As a CICL Fellow, Suzanne conducts legal research for International Rights Advocates on human rights and corporate accountability. She is also a member of Phi Alpha Delta and the Women’s Bar Association. This summer she will be a legal intern at Gibson, Dunn, & Crutcher in the firm’s Brussels office, which is focused on Competition Law practice in Europe.